Natural Environment and Rural Communities Bill - Standing Committee A

[Mr. Eric Forth in the Chair]

Natural Environment and Rural Communities Bill

Clause 40 - Duty to conserve biodiversity

Colin Breed: I beg to move amendment No. 103, in clause 40, page 13, line 34, leave out from ‘functions’ to end of line 36 and insert
‘further the conservation of biodiversity, so far as is consistent with the proper exercise of those functions’.

Eric Forth: With this it will be convenient to discuss the following amendments:
No. 2, in clause 40, page 13, line 34, leave out ‘have regard’ and insert ‘aim to further’.
No. 127, in clause 40, page 13, line 34, leave out from ‘have’ to end of line 36 and insert
‘a duty to further the conservation of biodiversity, so far as is consistent with the proper exercise of those functions’.
No. 3, in clause 40, page 13, line 35, leave out ‘to’.

Colin Breed: Good morning, Mr. Forth, and I welcome everyone on this lovely, bright, sunny day. What better day could there be to consider the Bill and biodiversity, which is the thrust of the clause and our amendments? I hope that the amendments that we have tabled are helpful. We welcome the duty on every public body to conserve biodiversity, but we would like it to go a little further than to “have regard” to biodiversity. Our amendments would strengthen the duty, and would have the added benefit of bringing England and Wales into line with Scotland in this respect.
We know that local authorities already have an important role in biodiversity when considering aspects of their work, such as planning. Planning is very much at the heart of local authority work these days, involving a tremendous amount of engagement with the public and business. Local authorities generally have become much more aware of the need to conserve biodiversity, and some have been proactive in that respect. When planning applications are submitted, particularly for large developments, sensible applicants already ensure that they have regard to biodiversity matters, but we want local authorities to have an enhanced role in that respect.
Many local authorities also own large pieces of land, or have control of them in one way or another. I am thinking of my own county and county farms: the way in which farm land is used where the county is the landlord and tenants are required to manage and run those farms with regard to biodiversity. When local  authorities receive applications for funding for various matters, they should consider what effect those applications may have on biodiversity.
I am aware that many local authorities are excellent; they are proactive. They are looking for this role and in many respects they have already undertaken what is set out in the provisions of the clause. My local authority, Cornwall county council, has been at the forefront of that process. Some three years ago it set targets in conjunction with Cornwall Wildlife Trust on 100 identified wildlife sites, 60 of which were owned by the council with a further 40 in private ownership. Those were identified as sites that were worthy of enhancement and I am very pleased that we are well on target, so that by March next year those sites will have been enhanced and the biodiversity will be much improved.
It would be true to say that other authorities are less active and less concerned, so the picture around the country is rather patchy. There are some very good local authorities and some that are much less so. We want to bring all those authorities up to the level of those that offer best practice.
The Cornwall Wildlife Trust supports our amendments and has helpfully provided a rather useful briefing, which may have been supplied to others. It properly highlights three distinct roles for our local authorities, which I think are worth reading into our deliberations because they are important aspects. First, there is the aspect of information on biodiversity. Before a local authority can introduce beneficial policies, it needs to identify the sites and areas that are locally important, which have real potential for enhancement or restoration. That takes a great deal of work and the trust ought to be commended for the work that it has done in this respect because authorities need to have that information at their fingertips to put into place policies that they would like to introduce. The logical place to hold, maintain and provide access to this information is a local records centre, and local authorities are one of the key partners being encouraged by the national biodiversity network to support both centres and to support those collecting the biodiversity information.
The Minister will forgive me for reiterating some of what we said a sitting or two ago about the role of local authorities. Their role would be complemented if they were to undertake some of the measures that are destined for the Commission for Rural Communities.
I spoke before about sites of special scientific interest, and the Minister knows that in the previous Session, the Select Committee considered SSSIs and the way in which so many of them had been regretfully damaged beyond repair. Local authorities are advised to give a high degree of protection through the planning system to SSSIs, and that includes using policies within their local development frameworks to protect and enhance them. It is important to enhance the sites’ usefulness, and not just to protect them and keep them as they are. Protection through the planning system and through the strengthening of schedule 9 of the Countryside and Rights of Way Act 2000, coupled  with a commitment from the Government to get 95 per cent. of SSSIs in a favourable condition by 2010, will create a relatively strong status for SSSIs.
However, SSSIs represent only a sample of our nationally important sites, with many priority habitats and species falling beyond their boundaries. That was recognised by Cornwall county council: it was not just the SSSIs, of which there are a considerable number in Cornwall, but many other sites that were of great interest and that needed to be protected.
Local sites have a lower hierarchical position. No significance is placed on their quality, nor on their contribution to nature conservation objectives, despite many being of equal calibre to SSSIs. For sites to be special, there should be relatively few of them in a category of special scientific interest. We all recognise, however, that underneath that category a huge number of sites are gradually being eroded or damaged. Local biodiversity action plans are an important part of any community strategy that local authorities should have a duty to prepare under Government legislation.
We welcome the clause, but if the Minister were to go that little bit further and bring us into line with Scotland, that additional duty would be provided for. Many local authorities need that extra push. Some are performing well and going well beyond what they already need to do; but many others are prepared to do only what they have to do. They may interpret some of the wording of the clause as having “regard to” it, but as little else. We would like to see the enhanced duty placed upon those local authorities.

Madeleine Moon: During the previous two days of discussion in Committee, it has been interesting to hear how different Members have represented their rural communities. We have heard from the hon. Member for South-East Cornwall (Mr. Breed) about the idyll of rural communities in Cornwall, and we have heard about the tremendous variety of mining villages from my hon. Friend the Member for Sheffield, Hillsborough (Ms Smith). May I add my endorsement of the beauties of the Sheffield area? My son is at university there, and I had never previously visited the area. We now regularly stay on a farm in the midst of nowhere outside a village called Hathersage, where we are 15 minutes from the centre of Sheffield, and it is absolutely glorious. I can assure those people who are concerned about the setting of Sheffield, that its environmental setting is a good representation of the United Kingdom’s diversity.
On Friday, I visited a rural village in my constituency. Cornelly is not what many people would think of as a rural community; there are certainly no roses round the doors or ponies trotting through the streets. Many people live in council housing and work in the steel works at Port Talbot, in the neighbouring constituency. One would not think that the word “biodiversity” was on everyone’s lips, but at a question-and-answer session with the children, who are planning to come to Parliament in a few weeks’ time, I was asked—the question was like a gift, and one  might have thought that I had planted it—“What are you going to do as a Member of Parliament to protect different species?”
That might seem a bizarre question coming from someone in Cornelly, given the way in which I have described it, but I have not told hon. Members that Cornelly is on the borders of Kenfig national nature reserve, which is a European site of nature conservation. As a result, the people of Cornelly are very conscious of biodiversity and of our responsibility for protecting the local habitat; to them, it is their local habitat—their local playground. Indeed, it is also the last remaining site of the sand dune systems that once stretched along the south Wales coast. It is therefore a rare habitat, and the biodiversity is of European importance.
When I told the children about my involvement in this Committee and about the clause, they were particularly interested. For them, biodiversity is not an academic, obscure issue: it is something that they see daily as they walk around their community. For them, it is precious, and they want the Committee to take responsibility for its conservation.
In previous speeches, the hon. Member for South-East Cambridgeshire (Mr. Paice) has mentioned the role of local authorities, and the hon. Member for South-East Cornwall has reiterated the point today. However, it is perhaps not generally recognised—I received this statistic from the Association of Local Government Ecologists—that 60 per cent. of local authorities in England do not employ an ecologist or have access to professional advice and information. Despite long-standing central Government advice and guidance, many of them are still not aware of their statutory obligations for biodiversity.
That is a frightening fact. It is frightening that many development plans for managing landscape features—local authorities have had responsibility for such things since 1994—still do not include sections on the management of flora and fauna. They pay no regard to that and contain no information about the biodiversity features in the local authority.
It has been recognised that planning will play a major role in meeting European and international targets on biodiversity loss by 2010. Yet local authorities’ performance varies greatly, as the hon. Member for South-East Cornwall mentioned. Not all of them have links with their local recording groups, so they do not know who the local bird recorder, the local moth recorder or the local plant recorder is. They certainly do not have an established local records centre to co-ordinate the information that many of them need. I am very fortunate because such things are in place in my local authority, but even when they are in place, there are still battles on the planning committees.
Our local authorities do not always conduct biodiversity action planning, something else mentioned by the hon. Member for South-East Cornwall. Some areas are not even designated sites of interest for nature conservation. That can have a tremendous impact for the protection of sites when  planning applications are made. An example from my constituency is Kenfig hill; whereas in Bridgend the local authority has many areas designated as sites of interest for nature conservation, across the border the neighbouring authority has none.
Hafod Heulog wood is an ancient woodland with no designated protection. An application has been made to the two local authorities for the extension, yet again, of an open-cast mine, which would wipe out the wood. The neighbouring authority knows nothing at all about what is in the site, but the local community is adamant that it wants to protect biodiversity and is aware of species that it wants protected, including butterflies and mammals. What is important—my reason for tabling this probing amendment—is that we should have a duty on local authorities not just to conserve but to further biodiversity. To date, many are not carrying out those duties. Reports to development control and planning committees contain a presumption in favour of developers. The presumption is people first.
I cannot tell the Committee how many planning committees I sat on when I was a local authority member in which the local member would say, “We don’t have to worry about a butterfly: I need this housing estate.” A member might take the same view about a particular mammal, or about great crested newts, and the reason would be, “I want a rugby academy,” or “I want my golf course extended.” I have heard all that over and over. Because there is not necessarily a demand that local authorities should have a duty to further biodiversity, many are able to disregard it.
Biodiversity is poorly integrated into other local authority departments. It is at its best in the leisure and highways departments’ grass-cutting regimes. We have, fortunately, seen an end to the sterile landscape of bowling green road verges. Increasingly, those areas are allowed to grow. Local authorities have grasped that responsibility, largely because it saves them money, but a side effect has been improved habitat opportunities. I wonder how many members of the Committee could say how many butterflies or flying insects they saw as they went about their constituencies this weekend, which was beautiful, with glorious sunshine. The increasing sterility of the environment in my constituency frightens me. It will have an effect on young people. If they do not regularly see the creatures and habitats that we know we need to protect, they will pay less and less regard to them.
I tabled amendment No. 127 because the words in the Bill will enable local authorities to have regard to a matter and then move on. They will look at the issue, then say, “No, no. That development is more important than protecting the habitat.” It is important to re-emphasise the duty to conserve and give greater strength to what we seek to protect. In Scotland, that duty is already in place. I hope that it will also be placed on English and Welsh local authorities.

Tony Baldry: With reference to the remarks that have just been made, I find it amazing that the economics of open-cast coal mining can justify environmental damage anywhere in England or Wales now, but perhaps that is a matter for Ministers other than the one present.
I have long been a supporter of the Berkshire, Buckinghamshire and Oxfordshire Naturalists Trust and am therefore instinctively predisposed to support any amendment that the Wildlife Trust puts forward. However, I am conscious that there is little to be gained from placing otiose burdens on local authorities, particularly if they are already doing the things concerned. As I understand it, local authorities already have a duty under the Local Government Act 2000 to produce local biodiversity action plans. I am bound to say that they are doing that.
If I may briefly trespass on the good will and patience of the Committee, I will describe what the local authority is doing in my constituency. Cherwell is an attractive part of England between Banbury and Oxford, along the valley of the river Cherwell, stretching across to the Cotswolds and areas such as Hook Norton—members of the all-party beer group will know it as the home of Hooky beer—and to Bicester and the Buckinghamshire borders. It is a conventional English district council authority. It has published its council biodiversity action plan and it has nine habitat action plans.
The council started that process by commissioning an ecological consultant to produce a precursor document, which councillors looked at and worked on. Priority habitats and species in the Cherwell district were detailed. The report considered the habitats and species listed in the UK biodiversity action plan and the Oxfordshire biodiversity action plan. It considered other local priorities and the work of the district council. Conservation of priority habitats and species was summarised.
However, all this is about more than just producing a biodiversity action plan. The district council has gone on not just to consult widely with local individuals, groups and organisations, which one would expect, but to fund local schemes through grant aid. For example, three organisations have been awarded grants by the district council towards local projects that are helping to improve sites for important habitats.
The Royal Society for the Protection of Birds has been given a grant towards habitat work on its reserve at Otmoor. If anyone ever has the opportunity to spend a little time in Oxford, they should visit Otmoor, which is about five or six miles away. It was the site that Lewis Carroll chose for the chess board in “Through the Looking-Glass”. It is an amazing area of fenland—one would never expect it so near to London. It was preserved because a lot of it was a training area for the Army during the war and afterwards. Not many walkers went there because they thought that they might get shot. That was quite a good way of preserving the habitat. It is now a phenomenal bird reserve. One would have to go up to the Cambridge fens or down to the Somerset levels or the Kent  marshes to find anything comparable. The reserve is significantly increasing the amount of wet grassland, grazing marsh and reed bed in the district, all of which are important habitats in the UK. That is an example of the district council working with the Royal Society for the Protection of Birds to enhance and improve an important area of biodiversity.
Banbury Ornithological Society has been given a grant towards the creation of a nature reserve with full public access, and it intends to carry out some heathland restoration as part of the project. Heathland habitat is quite rare in Oxfordshire. The society has taken an 18-acre field near Tadmarton, which is a village next to the one in which I live. The field is well used by a wide range of farmland birds, including yellowhammers, reed buntings and skylarks.
The Cherwell biodiversity action plan includes an objective relating to heathland re-creation. A specific project is to identify farmland birds that are priority species. The nature reserve will be promoted once public access has been created.
A further grant has been given to Oxfordshire Geology Trust to create a geological heritage trail based on Deddington and the Barfords, which is a group of villages in the heart of the constituency, just where the Jurassic outcrop finishes. The trail will explain how local geology has influenced the local landscape, biodiversity, industry and history. The trust will work with schools and, also as part of the biodiversity action plan, with farmers and local landowners.
The district council has provided grant aid for some 2,000 m of hedgerow restoration, involving coppicing, hedge laying and replanting. That is in addition to schemes funded by various Government agencies.
My point is that the district council is quietly getting on with meeting the wildlife challenge for the district. It is working co-operatively with farmers, landowners, wildlife and nature conservation organisations, and delivering on its biodiversity action plan. Such work does not get much coverage in the local newspapers or elsewhere, but it is the sort of thing that is of real value. The district council is actually getting on and doing everything to further biodiversity that is being asked for in the amendment, and it is much to be congratulated and, I hope, encouraged in that.
Although the amendment is valuable, it seems slightly otiose. There is no point in placing on local authorities further burdens if they are already delivering on their duties adequately—indeed, better than adequately—and seeking to ensure that the biodiversity of their district is well respected and advanced.

David Chaytor: I support the amendment and particularly endorse the argument made by my hon. Friend the Member for Bridgend (Mrs. Moon). I should begin with a confession and admit that I have no connection whatsoever with Sheffield—I appreciate that that may put me at a slight disadvantage in this debate—other than living about 40 miles from it. I have not been to Sheffield in the past 30 years, but, after the comments from various hon.  Members this morning and in previous sittings, I am determined to visit it and appreciate its beautiful countryside.
I should declare an interest as a member of the Lancashire Wildlife Trust. I am a strong supporter of its activities in my constituency.
I support the amendment not as someone from a constituency located in a rural area and which has enormous advantages but as one from a constituency that is primarily urban and suburban, albeit with a hugely attractive rural fringe. I pay tribute to the work in my constituency of the Lancashire Wildlife Trust and of the local authority itself, Bury metropolitan borough council, which has a strong record on sustainable development. It was the first local authority in the country to publish its own climate change strategy, for example, and one of the few actively to support the construction of an enormous wind farm, following the lead given to the campaign by a local Member of Parliament. I should mention that the wind farm will not be located within my constituency or the local authority’s boundaries—it is always easier if they are located within somebody else’s. Nevertheless, the council had the courage to support the recent proposal for the Scout Moor wind farm, and I am delighted that the Government were also able to endorse it.
Although I fully acknowledge that many local authorities do important work in biodiversity and I also acknowledge the crucial importance of SSSIs in the national conservation of biodiversity, it is important to recognise that if we are serious about engaging more people, especially more young people, in the cause of sustainable development generally and the conservation of biodiversity specifically, that will not be done by relying on the good nature of a small number of enthusiasts or of local authorities, nor on the preservation of our existing SSSIs.
Again, I recognise the important steps that were taken in the Countryside and Rights of Way Act 2000 to enhance the conservation of SSSIs, but the majority of people in this country live in urban or suburban rather than rural settings, and a long way from a SSSI. Most have no idea what a SSSI is, but many are concerned about local wildlife sites. They are extremely concerned about what happens in their backyard, both literally and metaphorically. That has been an issue in my constituency.
In fact, a great level of interest in local wildlife sites in a largely urban and suburban area led to the formation a few years ago of a unique political party, the Bury Wildlife party. Sadly, it was formed by two former members of my own party. They fielded candidates in elections and attracted considerable support, which was a measure of the interest in biodiversity among urban and suburban dwellers.
In areas such as mine, for 20, 30 years or more a considerable amount of former greenbelt has been concreted and tarmacked over to provide vast housing estates for affluent commuters who tend to work elsewhere in the Greater Manchester conurbation. The  importance of wildlife sites and of furthering the conservation of biodiversity within such large suburban concentrations is extremely important.
There is a huge attraction for many people to move into the modern housing estates to the north of Greater Manchester on the fringe of the rural upland. Many people appreciate the convenience of living in those housing estates, the quality of the housing and the good access to the motorway network. However, living in a large suburban housing estate has its disadvantages. Increasingly, populations such as that represented by many of my constituents are beginning to realise the limits of suburbia.
The amendment would contribute to an increasing recognition of the limits of suburbia and a recognition that if we concrete over more of our greenbelt to concentrate large numbers of people in residential settings with hardly a blade of grass to be seen, we will ultimately reduce the quality of life to which many people aspire in the first place. Therefore, in addition to the significance of the national programme of conserving and enhancing SSSIs, we need to do far more work to designate and conserve local wildlife sites.
In recent years, we have had many successes in my constituency. Some sites were quite small; some were larger. Some were in areas that were protected from future development; some were in areas that were completely wild. Some were former industrial sites that have developed by accident as wildlife sites, through neglect; others were former reservoirs and mills which provided the water power for the factories that were first built in my constituency almost 200 years ago and have attracted a considerable amount of wildlife, again as a result of neglect.
The amendment is not otiose—I am generally against otiosity, if one can be. It is a constructive amendment, and it would help to concentrate the minds of more of our local authorities, particularly those in urban or suburban districts where it is too easy to assume that biodiversity is not an issue for them. I argue that biodiversity is an issue for all of us. It is particularly important that more people in the urban and suburban parts of Britain begin to understand this, and the amendment would contribute to that understanding.

James Paice: I am warming to Sheffield, not least because the hon. Member for Bridgend (Mrs. Moon) says that she stays in a lovely farmhouse only 15 minutes from the centre. If one is 15 minutes from the centre in Cambridge, one is in the next street. Traffic must move more easily in Sheffield than it does in Cambridge. Be that as it may, Members on both sides of the Committee have made a great many important points. Like other hon. Members, I am a member of a local wildlife trust—in my case, the Cambridgeshire and Bedfordshire wildlife trust—and I strongly support the work that they do.
The hon. Member for Bury, North (Mr. Chaytor) has just crossed swords with my hon. Friend the Member for Banbury (Tony Baldry) about the word “otiose”. We do not have a problem with the desirability of biodiversity, and I am absolutely four-square with the hon. Members for Bury, North, for Bridgend and for South-East Cornwall, who clearly explained why it is desirable for local authorities to further biodiversity.
Moreover, the hon. Member for Bury, North is absolutely right about urban and suburban areas and the fact that biodiversity applies to us all. I merely flag up the slight concern as to whether it is right to push another duty on to local authorities rather than let them decide for themselves. I am taking a step back from biodiversity and looking at it from the wider perspective of letting local authorities make their own judgments and take their own decisions on all sorts of issues, which is something I feel strongly about.
I shall move an amendment later that also relates to the relationship between central Government and Parliament and the decision-making process of local government. I am a little wary of moving away from consolidating the duty to have regard to biodiversity to a duty to further the cause of biodiversity, not because I do not want biodiversity—I do—but because I am not sure that we should constantly push more definitive responsibilities on to local authorities.
Hon. Members on both sides have taken the opportunity to refer to projects and activities in their constituencies that show where local authorities are already furthering the cause of biodiversity. Like everyone else, I have my own examples. All hon. Members have probably received Wildlife Trust briefings, including one about the great fen project, which is close to my constituency and is restoring 3,700 hectares—almost 10,000 acres—of fenland from arable land to traditional fen.
The project involves Huntingdonshire district council working with the Wildlife Trust, English Nature and the Environment Agency. People often take the long way round when they are trying to restore the fen, rather than simply turning off the pumps and letting it all happen naturally, which they could do quite easily, because most of the fen is naturally drained. The only problem is that not a small number of my constituents could become homeless quite quickly, given the number of houses that are now below sea level.
The great fen project is a clear example of district councils working well and doing the job properly. I understand the impetus behind the amendment, and support the desire for local authorities to further biodiversity, but I am hesitant about Parliament imposing another duty on them and extending it further, rather than the quite proper way in which the Government are setting out to further biodiversity, which is simply to say that they must have regard to it. Beyond that, it should be a matter for local decision makers.

Paddy Tipping: I start by saying that I am the vice-president of the Nottinghamshire Wildlife Trust, a privilege that I share with the right  hon. and learned Member for Rushcliffe (Mr. Clarke), who knows a great deal more about bird life than I do. Perhaps I know more about wildlife than he does.
Clause 40 is an important new clause. I do not think that we should pass it without appreciating its significance. It builds on the work of the Countryside and Rights of Way Act 2000 and places a new duty on local authorities to have regard to biodiversity. It is the first time that such a duty has existed. That duty applies not just to local authorities but to public bodies.
Will the Minister confirm that regional development agencies are public bodies? I am sure that they are. If so, the new duty will apply to regional development agencies. A duty of sustainable development has already been placed on them, but I am not convinced that they always give that duty sufficient priority. Regional development agencies do good work. For example, the East Midlands Development Agency—EMDA—recently helped to fund the Nottinghamshire Wildlife Trust’s new visitor and entertainment centre at Attenborough nature reserve’s fine building. That is a specific project.
However, RDAs are particularly driven by economics and the notion of sustainability and biodiversity does not, to my mind, have high enough priority with the agencies. So I hope that the Minister will make it clear to RDAs that this new duty applies to them.
I join other hon. Members in commending the work of local authorities. There is a new vision and impetus in local authorities to consider biodiversity and, as my hon. Friend the Member for Bury, North said, to consider local wildlife sites in particular. Some local authorities are extremely good, but a survey of them all would find them to be patchy. The issue that the amendments address is straightforward. The hon. Member for South-East Cambridgeshire put it well. The question is whether the duty to conserve biodiversity is a passive duty that local authorities must have regard to, a thinking duty, or whether it is more action-oriented and the duty is to further biodiversity.
I will give some examples from my county, Nottinghamshire, in which the local authority should have done more. At North Muskham, Langold, Everton, North Leverton and in parts of Broxtowe, the bat population has declined because the local authorities have given planning permission for barn conversions and old buildings to become new residences without doing the necessary bat surveys. As a result, the mitigation that is necessary has not taken place. In each case, the local authorities would say that it did have regard to the issue of bats. That is the point of the amendment. Perhaps a duty to further biodiversity would have been helpful in those cases.
Another interesting example, and one that Parliament and all the parties in it have taken an interest in, is the removal of hedgerows. We are beginning to get a grip on that issue. When they are approved by local authorities, removal notices do not define the time of year in which such work should be done. A duty to further biodiversity would be  extremely helpful in that regard; the local authority would be able to specify at what time of year the work should be done, so as to avoid bird-nesting seasons.
The duty of the local authority as land manager is also relevant. Most local authorities own substantial amounts of land. All the hon. Members who have spoken in the debate have, rightly, spoken about their areas and about the beauty of them. I will talk for a moment about Sherwood forest, which has been degraded over the years. Far too much of Sherwood forest is wall-to-wall conifer. If we went back to the days of Robin Hood, real socialism and redistribution—

David Chaytor: Why not?

Paddy Tipping: My hon. Friend asks why not. Colleagues 100 yd down the road do not wish to do so. If we were to return to those romantic times—I make the point that Robin Hood came from Nottinghamshire, not from Barnsley or elsewhere in Yorkshire—

David Chaytor: Sheffield?

Paddy Tipping: Not even Sheffield. I will praise Sheffield, but I will not give it that one.
If we were to return to those days, we would reintroduce more heath land and grassland. There has been some remarkable work at some of the old pit sites, such as Blidworth and Bevercotes; a piece of alchemy has transformed those mud heaps into a new greenwood—a new Sherwood forest of deciduous native woodland, and a fair amount of heath land.
It is important that local authorities acknowledge the importance of the provisions of clause 40. I imagine that there will be further debate on the matter during the Bill’s passage through Parliament. However, I look forward to the Minister telling us that RDAs are covered; and I would like to know how he anticipates local authorities having a consistency of approach when implementing the provisions.
The debate on having regard to and furthering is an echo of an earlier debate on clause 2, the purpose clause. I suspect that there is some hesitance to further nature conservation and biodiversity because of the possibility of conflict between economic and social aims. As we acknowledged earlier, Mr. Forth, good practice and good land management would help resolve many of those issues. It is an important clause. Even though interesting amendments have been tabled, it is vital that we applaud the Government for bringing forward such legislation.

Jim Knight: I declare at the outset, as did other hon. Members, that I am a member of the Dorset wildlife trust. Indeed, I even went so far as to raise money for it by walking from one end of my constituency to the other. I took a couple of days; it was most enjoyable and a fantastic opportunity to appreciate the biodiversity of my constituency. I enjoyed it again at the weekend when I helped to organise a horse-riding event, when I  followed a hare that was running along the road in front of the car, and when I witnessed a couple of skylarks on the downland above the Weymouth white horse. I enjoyed myself considerably when admiring the biodiversity in Dorset.
It will help if I sketch out exactly what clause 40 does. It places a duty on all public bodies and statutory agencies to have regard to conserving biodiversity in the normal exercise of their functions. The definition of conservation in that instance includes restoring and enhancing habitats and the populations of living species. I can tell the hon. Member for South-East Cambridgeshire—I am grateful for his supportive comments —that it is a duty. Its purpose is to clarify existing duties and to raise the profile of biodiversity. The generic nature of the duty allows complete flexibility in delivery, and it allows public bodies to implement it in the way that is most relevant to their functions and to the opportunities that are open to them—and local authorities are accountable for that to their electors. It is intended to encourage a culture shift, so that public bodies make biodiversity a natural and integral part of the decision-making process.
I am sure that the Committee will be pleased to hear that DEFRA will be supporting the implementation of the duty—for example, through the additional allocation of £850,000 per year to support regional and local biodiversity partnerships. That will assist partners such as local authorities better to integrate biodiversity into their policies and operations. The duty will apply to England and Wales, and I can tell the Committee, particularly my hon. Friend the Member for Sherwood, that it will apply to all public bodies—not only local authorities, but Government Departments and regional bodies, including regional development agencies.
The amendments, as we have heard, seek to strengthen the duty by requiring public bodies to aim to further the conservation of biodiversity. We are comfortable that the wording of the Bill goes far enough to encourage public bodies to integrate biodiversity into their functions. While the duty does not prejudge the outcomes for biodiversity—which, to some extent, the amendment seeks to do by using the word “further”—it should mean that decisions are more beneficial for the conservation of biodiversity than they might otherwise have been. I have had conversations with officers of English Nature, who would value the ability to go to local authorities or other public bodies—regional development agencies are a good example—to point out to them their statutory duty to have regard to the conservation of biodiversity.
We are, primarily, trying to tackle the instances in which biodiversity loses out because it is not taken into account. On that basis, this duty is sufficient. Local authorities have been much referred to by the hon. Member for South-East Cornwall and by my hon. Friends the Members for Bridgend and for Bury, North, and 67 per cent. of them do not include  biodiversity questions on their planning application forms. The duty set out in the Bill would address that. The hon. Member for Banbury (Tony Baldry) waxed lyrical about the excellent performance of his local authority. I pay tribute to the many local authorities and councils throughout the country that work hard in the pursuit of biodiversity conservation. However, the fact that 67 per cent. do not include such questions suggests that we need to do a little more, as we have heard. I can tell my hon. Friend the Member for Bridgend that councils will have to worry about the newts; they will have to have due regard to them under the new duty.
Strengthening the “duty to further” would raise difficult questions for local authorities and other public bodies. The Committee is in agreement that it is desirable to further biodiversity. The question is whether stating that as a duty will cause difficulty. Let me give an example. A local authority could be faced with a decision between two projects, one that is good for biodiversity but bad in other ways, and another that is neutral for biodiversity, but furthers things economically and socially. I would not want to make that local authority subject to legal challenge for not opting for the plan that furthered biodiversity when it could have gone for the neutral one that did no damage to biodiversity but allowed it to further some of its other aims.

Colin Breed: As mentioned, the measure will bring England and Wales into line with Scotland. Is the Minister aware of any problem, along the lines that he just described, in Scotland, which has been subject to this duty for some time?

Jim Knight: The issue of Scotland is one on which we celebrate devolution—the ability of each nation to decide for itself how to interpret things and which duties to apply. I do not want to comment unduly on the effect of that; I want to concentrate on what is right for England and Wales. To introduce an extra duty to further biodiversity has the potential to cause some difficulty, and to invite legal challenges on individual decisions of public bodies. In my constituency, the Ministry of Defence does an admirable job in furthering biodiversity on the ranges at Lulworth and around the camp at Bovington—for example, by taking extraordinary steps to protect sand lizards around the tank training tracks. There are excellent examples of Departments as well as local authorities furthering biodiversity, but there may be circumstances where the Ministry of Defence, for example, needs to take actions to further its own statutory aims. As long as those aims are neutral in relation to biodiversity, we should not be critical of them and make them subject to legal challenge because they did not further biodiversity.

David Chaytor: On neutrality, would the Minister accept that it is in the nature of a duty that merely requires a body to have regard to something that the body could have regard to it and then choose to ignore it completely?

Jim Knight: The body could have regard to biodiversity and choose to take another action, but it would have to be able to demonstrate that it had regard to the purpose of conserving biodiversity. If it were challenged, it would then be able to demonstrate that it had properly considered the biodiversity implications of its actions. That is the important aspect of what we are trying to introduce here, which I think all Committee members would agree is a positive step forward—although some may argue that we should go a little further.
In short, the duty to “have regard” is in my view the most appropriate approach. I have listened carefully to hon. Members and I say in passing to my hon. Friend the Member for Sherwood that tomorrow I shall be launching a new woodland policy, to which I am sure he will pay close attention. I think that we have the most appropriate approach regarding duties on public bodies in relation to biodiversity, and on that basis I hope that the hon. Gentleman will withdraw his amendment.

Colin Breed: We have had nearly an hour of very good, honest and straightforward debate. At the end of the day, I feel that there is not a great deal of difference between the parties or many individuals.
When I considered the clause, I immediately felt the same way that the hon. Member for South-East Cambridgeshire felt about imposing another duty on local authorities. Local authorities have had enough duties imposed on them during the past few years and as a former councillor—as I suspect many hon. Members were—I recognise that many councils feel that they have become not much more than agents of central Government. I needed to be persuaded of the case to impose another duty on them.
I was persuaded because of two or three issues. It is rather ironic that those areas of the country that have for a long time protected the countryside through planning policies, protected biodiversity and taken the matter extremely seriously have become a magnet for people who wish to move. They have become places that people now want to go to and thus are subject to considerable pressure for more development.
The first reason that I felt that this duty was needed was that in future local authorities might value having an additional duty to give them the armoury and protection that they need to go into fights with developers over particular sites so that they can genuinely say, “I’m sorry, but we have a duty to conserve biodiversity rather than just have regard to it.” That would give them a stronger hand in dealing with development applications in sensitive places.
To a certain extent, it is a matter of value judgments, and I think that what the Minister is saying about having regard is all right, but what value do we attribute to the regard of biodiversity against what happens in a planning application, the management of an estate or whatever? Where is the value judgment? The value of biodiversity has moved from almost nowhere to way up the scale, but sometimes just having regard to it means that sites can deteriorate.  They will not be maintained at their current level if planning applications are approved merely because the planning authority has had regard to biodiversity.
Then we come to those situations where local authorities, having had regard for biodiversity, properly refuse an application. In 99 cases out of 100, the applicant will immediately go to appeal. However, I suspect that if there were a duty to conserve biodiversity there would be little doubt that such applicants would not appeal and that if they did, the planning inspectors would have much more opportunity to give such value judgments the force that we all believe is right.
We have concentrated on local authorities but are talking about all public bodies, some of which have approached the situation much more proactively than others. I always smile a little when we talk about the Ministry of Defence. Having spoken on defence for a couple of years, I recognise that it does a fantastic public relations job of telling us how great it does on its ranges, while largely forgetting about the acres of land that it churns up with tanks and explosives on Dartmoor. The MOD does a great job on the margins, but in the middle, where it thunders around with huge tanks ripping up the soil, I am not quite so certain that it has regard for biodiversity.
There is a measure of agreement across the Committee that the issue is important. The clause is welcome, although even at this stage the Minister has not persuaded me that there are great difficulties. He could have given lots of examples of real conflict in Scotland, where similar proposals have been passed. My view is that many local authorities would welcome the protection that they would give in negotiations on developments in or close to sensitive sites, rather than opposing them as another duty. I would therefore like to press the amendment to a vote.

Question put, That the amendment be made:—

The Committee divided:  Ayes 2, Noes 9.

NOES

Question accordingly negatived.

Jim Knight: I beg to move amendment No. 138, in clause 40, page 14, line 19, after ‘means’, insert ‘in relation to England,’.

Eric Forth: With this it will be convenient to discuss Government amendment No. 139.

Jim Knight: I shall not detain the Committee very long. The amendment makes a minor technical revision to subsection (5) to reflect the difference in practical interpretation of the term “authority” in England and Wales. I apologise that we had not recognised the difference, but it has come to our notice that we need to define local authorities in Wales properly. I apologise in particular to my hon. Friend the Member for Bridgend and the hon. Member for Brecon and Radnorshire (Mr. Williams), who I am sure noticed that and would have tabled an amendment if we had not done so.

Amendment agreed to.

Amendment made: No. 139, in clause 40, page 14, line 21, at end insert—
‘(b)in relation to Wales, a county council, a county borough council or a community council;’.
‘(b)in relation to Wales, a county council, a county borough council or a community council;’. —[Jim Knight.]
The Chairman, being of the opinion that the principle of the clause and any matters arising thereon had been adequately discussed in the course of debate on the amendments proposed thereto, forthwith put the Question, pursuant to Standing Orders Nos. 68 and 89, That the clause, as amended, stand part of the Bill.

Question agreed to.

Clause 40, as amended, ordered to stand part of the Bill.

Clause 41 - Biodiversity lists and action (England)

Roger Williams: I beg to move amendment No. 4, in clause 41, page 14, line 33, at end insert
‘and such other bodies as he sees fit’.

Eric Forth: With this it will be convenient to discuss amendment No. 5, in clause 42, page 15, line 6, after ‘Wales’, insert
‘and such other bodies as the Assembly sees fit’.

Roger Williams: I should point out that I have recorded in the Register of Members’ Interests ownership of and partnership in a farming business in Wales, as that may be reflected in my amendments.
When I first started farming, the Government paid me to drain, plough up and re-seed wetland. That was before the common agricultural policy had come into force, so we cannot even blame the Europeans. I am now paid to reverse the process and re-establish the wetlands, so in one generation I have seen a huge change in land use in this country.
I have not recorded in the register, although perhaps I should, the fact that I am a participant in a scheme run by the Welsh Assembly called Tir Gofal, which means the cared-for countryside or land. That scheme is equivalent to, but much better than, the countryside stewardship scheme in England. It is a very good whole-farm scheme, which takes in all land that is farmed and has an integrated and comprehensive approach to nature conservation.
The intention behind amendments Nos. 4 and 5 is to be helpful to the Minister, although he rejects our advances, however much we try. The amendments would give him the opportunity to consult other people in England and the Assembly the opportunity to consult other bodies in Wales, rather than just Natural England and the Countryside Council for Wales, because we believe that such consultation would benefit the drawing up of the list of species and habitats. The Minister will tell me that he will consult everyone and that the clause merely places a requirements on him to consult Natural England, but it is only fair that the amendment should be part of the legislation, because things change and organisations other than Natural England might come into force. It would therefore be appropriate for the Minister to consult such organisations.
Other factors might also be taken into consideration. Much of our wildlife, for instance, is not only important in this country; many migratory species spend only part of their time here, and it can be difficult to track where many bird species, several insect species and certainly marine wildlife spend some or most of their time. It is therefore important to consult nature conservation bodies not only in this country but in Europe and throughout the world if we are serious about ensuring that our approach to biodiversity is not only neutral, as the Minister says, but a way to promote it for ourselves and future generations.
Such things are not always obvious. A few weeks ago, I went walking with a group of schoolchildren in the hills around their school, and we came across a splendid, huge display of bluebells. I tried to get the children to show some enthusiasm, but they said, “Bluebells are bluebells; we see them all the time.” Britain has one third of all European bluebells, so although the species is common, this country is an important habitat for it, because we have so many areas where it can flourish and thrive.
I shall not pursue the matter, but my point applies not only to European and world bodies involved with nature conservation; on a lower level, many people and bodies with relevant expertise could be consulted.

Jim Knight: Clause 41 places a duty on the Secretary of State to publish lists of living organisms and types of habitat in England that she believes to be of principal importance for the purpose of conserving biodiversity, and to consult Natural England before doing so. The clause reflects the current position, which was introduced by section 74 of the Countryside and Rights of Way Act 2000.
The clause requires the Secretary of State to take reasonably practical steps to further—how nice to use that word—the conservation of living organisms and types of habitat, to promote the taking of other such steps, to keep under review the published list, and to publish any revisions of the list.
Clause 42 places similar duties on the National Assembly for Wales, requiring it to consult the Countryside Council for Wales in carrying out the duties.
Amendments Nos. 4 and 5 propose that the Secretary of State and the National Assembly for Wales should consult other bodies as they see fit. As they are likely to want to consult other interested bodies—I am about to say what the hon. Member for Brecon and Radnorshire thought I might—the amendments are not necessary and do not add anything. In the normal course of things, we should and do consult; whom we consult should depend on the issue on which we are consulting. If anything, the amendment would weaken the clause by reducing the important roles to be played by Natural England and the Countryside Council for Wales, although I do not want to overplay that point.
In essence, the hon. Gentleman and I disagree, as ever, on whether something should be explicit in the Bill or implicit. I argue, as ever, that implicit is sufficient. On that note, I hope that he will withdraw his amendments.

Roger Williams: I have heard the Minister’s comments and beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Madeleine Moon: I beg to move amendment No. 128, in clause 41, page 14, line 39, leave out ‘promote’ and insert ‘ensure’.

Eric Forth: With this it will be convenient to discuss the following amendments: No. 61, in clause 41, page 14, line 39, at end insert—
‘having regard to the financial costs which such steps would incur’.
No. 129, in clause 42, page 15, line 11, leave out ‘promote’ and insert ‘ensure’.

Madeleine Moon: I listened to the Minister’s explanations on clause 40 and was particularly pleased to hear his assurance that a responsibility will be placed on local authorities to include biodiversity issues in planning application forms.
In many respects, the issues covered by clauses 41 and 42 flow from clause 40. We are talking about the Secretary of State and the National Assembly for Wales having responsibilities to publish lists of species of principal importance, not about their having a general regard for biodiversity. Species of principal importance may be rare or at risk of loss and may be of European as well as UK importance.
How do we ensure that we give the list a statutory power for delivery among those authorities that are required under subsection (3)(b) to
“promote the taking by others of such steps.”?
A questionnaire was sent out by the Association of Local Government Ecologists, and the drive for local authorities to take action on biodiversity was right there in their top three priorities: legislation and statutory obligations, Government policy guidance and—surprise, surprise—funding incentives.
What we have here is a list that is backed by policy guidance and statutory obligations. It will have greater authority when local authorities and regional development agencies look at it. I cannot speak about  the regional development agencies in England, but the Welsh Development Agency is not noted for its commitment to, interest in or role in the conservation of biodiversity or species of principal importance.

Roger Williams: I have listened to the hon. Lady, but one Member is appointed to the board of the WDA to have specific responsibility for wildlife and diversity issues.

Madeleine Moon: I am aware of that. However, as always, it is a voice and what matters is how often that voice is listened to. The hon. Gentleman will agree that that voice is often crying in the wilderness.
We are looking for a chance to ensure that the list is proactive and not passive. We have such lists in Wales. The issue is the status of the list. The hon. Member for the traffic jam of South-East Cambridgeshire expressed concern at putting definitive responsibility on local authorities. Here, we must push the responsibility because we are discussing a list of species of principal importance. I want to ensure that the necessary steps are taken, not merely promoted. The hon. Member for Brecon and Radnorshire (Mr. Williams) referred to a voice in the Welsh Development Agency. I am sure that that voice promotes the taking of such steps by the WDA and I am sure that that happens on equivalent bodies in England. If species of principal importance are to be protected, the responsibility must be to ensure that the necessary steps are taken.
I welcome the Minister’s announcement of an additional £850,000 for local biodiversity partnerships. I hope that that will enable us to add to the species list, so that we ensure that it increases and does not decrease.
I am sure that the planning inspectors would note the responsibility for species on the list if they were required to ensure their protection.

James Paice: I have listened with interest to the hon. Lady and do not dissent from her desires, but I am concerned about her proposal that the Secretary of State should have the power to ensure—that effectively means enforce—that local authorities and other public bodies deal with the list. The drafting of my amendment may not be the best, but it tries to flag up my concern that the Secretary of State may, even with the word “promote”, put obligations, even if they are only moral obligations, on public bodies, and particularly local authorities, regardless of the financial cost. There may be arm twisting in the form of promotion. That is a difficult issue. Most of us would say, when we are talking about endangered species and the biodiversity action plan species, that, clearly, we should not have to think about what the cost is, because the long-term costs to the country, as the hon. Members for Bridgend and for Bury, North said earlier, are terribly important. I agree with that.
I am also conscious, as we all are, of the reference by the hon. Member for South-East Cornwall to the ever-increasing obligations on local authorities to do things without the cash flow to do them. It is one reason that council tax has been rising so much faster than  inflation during the past few years. Obviously, there are many other reasons, but more and more duties without the Government funding them is one.
The purpose of amendment No. 61 is to insert the provision that when the Secretary of State promotes the taking by others of such steps, it should be done—using the Government’s own phrase—“having regard to” the financial costs that such steps will incur. In other words, the amendment is making the Secretary of State stop and think, not necessarily that the steps should not be taken, but that they could be expensive. If the Secretary of State is going to say to local authorities “You need to take these steps,” or by using “promotion”, “We want you to,” the Government should provide the wherewithal to do so. I am seeking not to stop the action, but to ensure that the council tax payer is not yet again forced by local authorities to pay for another responsibility that the Government, in imposing that obligation on local authorities, have not directly supported.
It is a straightforward point. I entirely agree with the principle of the proposal in the legislation. The Secretary of State should promote the taking by others of such steps, but we must flag up the issue of cost, not to stop those steps being taken, but to give some thought to who will pay and how. As the hon. Member for Bridgend said in relation to the Association of Local Government Ecologists, the funding question is always there and one cannot ignore it. It needs to be incorporated in that responsibility, and that is why I have tabled amendment No. 61.

Jim Knight: I have already sketched out what clause 41 seeks to do. Amendments Nos. 128 and 129 change the duty for the Secretary of the State and the National Assembly for Wales from promoting the taking of steps by others to further the conservation of biodiversity to ensuring it. The duty of the Secretary of State and the National Assembly for Wales to promote the taking of such steps already exists in section 74 of the Countryside and Rights of Way Act 2000. So, we do not seek to change anything, and the judgment about whether we have got the provision right is about whether what is in operation is working.
The duty is being carried out effectively, and there would be no additional value in changing the wording from “promote” to “ensure”. I see my hon. Friend the Member for Bridgend shaking her head. There may be some difficulty about how we would enforce “ensure”, but I hope that on the basis of what I have said and of our discussions about clause 40, she will withdraw her amendment.
Amendment No. 61 would require the Secretary of State to have regard to the financial steps that she promotes others to take to further the conservation of the living organisms and types of habitats included in any list published under this provision. I should expect any decision to be based on the three pillars of sustainable development and therefore to incorporate social, environmental and economic considerations. In addition, this part of the clause refers to those steps that the Secretary of State would “promote” others to  take, and therefore there would be no obligation on others to take those steps if they believed that they would be unduly costly. Value for money and financial implications are already comprehensively integrated, and I do not, therefore, believe that the amendment is necessary or desirable.
The clause goes no further than section 74(2) of the Countryside and Rights of Way Act and already includes the concept of practicability in the steps that should be taken to further the conservation of biodiversity. Practicability would clearly include financial considerations. I hope that I have given the hon. Member for South-East Cambridgeshire sufficient comfort to persuade him not to press his amendment.

Madeleine Moon: I am sorry to hear the Minister’s reply. It is because the list has little impact in Wales that I tabled the amendments. It is given scant regard because its status and authority are in doubt. The stance that he has taken will ensure that that happens in England, too. I shall take heart from his words about clause 40 and the idea that recognition of the Government’s determination to move forward on issues of biodiversity will raise the status of the lists. I want to see an improvement on “regard” and I want local authorities in Wales and in England to take cognisance of the lists. If I do not see that happen, I will make the Minister’s life a misery. With that in mind, and on the understanding that he can look forward to my making his life a misery, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 41 ordered to stand part of the Bill.

Clause 42 - Biodiversity lists and action (Wales)

Roger Williams: I beg to move amendment No. 77, in clause 42, page 15, line 2, leave out ‘must’ and insert ‘may’.

Eric Forth: With this it will be convenient to discuss the following amendments: No. 78, in clause 42, page 15, line 5, leave out ‘must’ and insert ‘may’.
No. 79, in clause 42, page 15, line 7, leave out ‘must’ and insert ‘may’.
No. 80, in clause 42, page 15, line 12, leave out ‘must’ and insert ‘may’.

Roger Williams: On Second Reading, I suggested that we should examine the Bill to see whether it gave due recognition to the fact that the Assembly is a national Government for Wales and should be given the same recognition as other devolved Governments in Great Britain. We consider such things carefully, because those of us who are committed to devolution, and even to making progress with the devolution settlement, would like the relationship between Westminster and the devolved Governments to act as a positive influence for all that we believe in.
The Government of Wales Act 1998 in particular put in statute the idea that the National Assembly for Wales should be committed to, and give due recognition to, sustainability. It is probably one of very few national Governments in the world—probably two or three others can be found—with that statutory duty. Therefore, it seems particularly inappropriate that the word “must” should be used in the clause. It seems beyond belief that the National Assembly for Wales would not want to play its part in promoting, conserving and enhancing biodiversity.
Perhaps the amendment is not absolutely right and the word “may” is not quite the right choice. The word “should” might be preferable. Perhaps the clause should use a form of words such as “The Secretary of State should encourage”. However, I consider the word “must” to be particularly inappropriate. I should like the Minister’s assurance that he will consult the National Assembly for Wales on this aspect of the Bill, and perhaps one or two others, to ensure that the wording is conducive to the formation of that constructive partnership that will serve not only the devolved nations but the whole of the United Kingdom.

Jim Knight: In debating earlier clauses, I have sketched out what clause 42 is designed to do. Amendments Nos. 77 to 80 would significantly weaken the duties in Wales by changing “must” to “may” in four instances, although I accept that the hon. Gentleman said he is not sure it would be right to use “may”. The amendments would effectively change the duty to a power, and we want to continue with the existing position as introduced in the Countryside and Rights of Way Act 2000.
The Welsh Assembly Government already have the duty in question under the 2000 Act, and any change would be detrimental to biodiversity conservation. The listing process ensures that species and habitats of particular importance are highlighted so that their protection will be prioritised. I am sure that it is not the hon. Gentleman’s intention to weaken the activity of the Welsh Assembly Government in that regard. The presence of these lists will be even more important in future, because all public bodies will have a duty to have regard to the conservation of biodiversity. The list will be an important source of information and help them to prioritise.
I assure the hon. Gentleman that we have consulted our devolved colleagues in the Welsh Assembly Government who are happy that they must consult the Countryside Council for Wales on the list and take such steps as appear to the Assembly to be reasonably practicable for the conservation of living organisms and habitat types on the list. On the basis that we have consulted and will continue to consult colleagues in Wales on all aspects of the Bill, I trust that the hon. Gentleman will withdraw his amendment.

Roger Williams: On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 42 ordered to stand part of the Bill.

Clause 43 - Possession of pesticides harmful to wildlife

James Paice: I beg to move amendment
No. 144, in clause 43, page 15, line 21, at end insert
‘with the intention of committing any offence under Part 1 of the Wildlife and Countryside Act 1981 (c. 69), the Conservation of Seals Act 1970 (c. 30), the Deer Act 1991 (c. 54) or the Protection of Badgers Act 1992 (c. 51)’.

Eric Forth: With this it will be convenient to discuss the following amendments: No. 63, in clause 43, page 15, line 26, after ‘was’, insert
‘or had been in the past’.
No. 64, in clause 43, page 16, line 2, at end insert—
‘(7A)An order made under subsection (1) shall come into force on such date as may be prescribed by the Secretary of State being not less than six months from the date on which it is made.’.

James Paice: I make it absolutely clear that the Opposition condemn anybody who uses poison to kill birds of any species. I wholly support the Government’s objective in tabling the next few clauses. As an aside—this will come up again later—I am slightly concerned that the Government did not consult on the provisions before including them to ensure that they got them right. There was some discussion, but it was not a consultation. The reason why I am concerned, as I am about clause 46 and the protection of nests, is that I am not sure that the proposals will address the problem that I readily accept exists.
It is already an offence to set poison for a bird and has been for 24 years. It is also already an offence to possess a large number of pesticides that have been banned in preceding years. In particular, carbofuran has been most commonly used for poisoning birds of prey. Although the problem is not restricted to birds of prey, their protection is the principal objective of the clause. In 2003, which is the latest year for which I could obtain figures, carbofuran was used in 35 of the 58 incidents across the UK. It is already an offence to possess it, so the clause is not necessary to deal with the pesticide.
If we narrow the focus to England and Wales, which is what the Bill applies to, we see that carbofuran was used in three of the eight cases in England and two of the seven in Wales. On top of that, two other pesticides—mevinphos and alphachloralose—have also been withdrawn from the market, so it is also an offence to possess them. They account for another five of the 15 cases in England and Wales. If we take out the pesticides that have already been banned, we can narrow down the problem considerably.
The Royal Society for the Protection of Birds says in its report on bird crime in 2003, from which I have obtained all these statistics:
“We are concerned that withdrawing pesticides that are most frequently abused one at a time has not solved the problem. Instead alternative products have been found.”
It means by that that it supports this proposal which would, effectively, ban any pesticide that an individual has no good reason for possessing. However, I believe that the phrase
“Instead, alternative products have been found”
demonstrates the big loophole in the legislation, in that those who want to poison raptors or other birds of prey will continue to find means of doing so. A large number of toxic pesticides will still be available, and people will have no difficulty in convincing courts that they are legally entitled to have them. For example, phostoxin is used for rabbits; warfarin and other anticoagulants and all sorts of other chemicals are used against rats and mice; and strychnine is used against moles. That is without even considering traditional agricultural pesticides such as insecticides. One that is commonly referred to is temic. I am not aware that there has ever been a case of the poisoning of a rat or a bird of prey with temic, but I readily accept that that is possible, because it is a noxious pesticide. However, temic is legal, and is approved for use on potatoes. Therein, again, lies for me the problem with this approach. Anybody who has some temic, even if his intention is malign, has only to say that he got it for his mate because he grows potatoes in his allotment and that he therefore has a justification for possessing it. It is not that I do not support the objective, but I have a fundamental problem believing that the legislation will make a jot of difference. It is legislating on the “something must be done” principle rather than because it will make any difference.
There is already a mass of legislation that deals with this sort of thing. The RSPB document refers to the fact that people have been prosecuted for the illegal storage and use of pesticides—beyond the issue of poisoning of birds, there is the matter of illegal storage. People are already being prosecuted for other offences under the Food and Environmental Protection Act 1985. Having spent three years as shadow spokesman on police and crime, and having sat in this and other Committee Rooms dealing with criminal legislation, I am averse to the idea that we need more laws and to ban this and that. It is a bit like antisocial behaviour: we keep making more individual bits of behaviour illegal, without addressing the fundamental issue.
I do not want to digress, and I know that you will not allow me to do so, Mr. Forth, but that is the problem that I want to turn to now, and I hope that you will let me make a couple of points on the issue that clause 43 seeks to address. It will be mirrored when we come to clause 46 and the matter of nests.
I am the first to accept that there is a problem with the public image of gamekeepers, either because of Lady Chatterley’s Mellors—perhaps that is an unfortunate word for some of us who have been in this House for a few years—

Robert Goodwill: Will that go in Hansard?

James Paice: “Don’t print that,” as they say.
More to the point is the image of the old-fashioned gamekeeper’s gibbet, with pests and vermin hanging on barbed wire and things like that. Of course, there is also the image that grouse moors are the preserve of the very wealthy and rich. Yes, they are. Few people can afford to go shooting grouse, and I am not one of them. Nevertheless, as my hon. Friend the Member for Scarborough and Whitby (Mr. Goodwill) will vouchsafe from his constituency, it is terribly important economically in such areas. There is ample evidence that the prosperity of some rural communities goes hand in hand with the prosperity of the shooting community, particularly where grouse moors are concerned.

Peter Atkinson: My constituency contains the best grouse moors in England. In the remote parts of the north Pennines, the Allen valleys, they contribute about £3 million a year to the local economy, and that is a huge amount and is of huge importance.

Eric Forth: Order. I am hoping that the hon. Member for South-East Cambridgeshire will persuade me fairly quickly of the connection between grouse moors and clause 43. I urge him to do that quickly or to move on.

James Paice: I am happy to do so, and I appreciate that there are not too many grouse moors in your constituency, Mr. Forth. Nevertheless there is a widespread perception—and evidence from the RSPB’s papers—that many incidences of poisoning of birds of prey are taking place on grouse moors. That is the clear connection.
What I have described may be the public image, but the reality—apart from the economic issues, which I am grateful to my hon. Friend for endorsing—is that the issue of wildlife relates more strongly to this section of the Bill. There is ample evidence that keepered moors are more beneficial for the overall panoply of wildlife than unkeepered moors.
Moors that are managed for grouse typically have a wader population—golden plovers, lapwings and curlews—of up to five times the population of unkeepered moors. Part of that is the control of ground vermin, particularly foxes and crows, which persecute such birds, particularly ground-nesting birds. If we look at the north Pennines area of special protection, we find that curlews are 18 times more prevalent than in the Berwyn mountains in Wales, which are run as a reserve. The merlin, which is the subject of an amendment in this group, is twice as common on managed moors as unmanaged moorland.
All those other birds—of course, the merlin is a bird of prey—benefit from the management of a grouse moor. Nowhere was that emphasised more clearly than in the Langholm study carried out in the 1990s on grouse moors in Dumfriesshire. It clearly showed the effect of the prevalence of the hen harrier, which is one of the most sensitive birds and the victim of a number of such offences in the past. When the hen harrier population rose alongside the grouse population until the tipping point and then got so high that it began to  damage the grouse population, the viability of the moor diminished and the owners had to withdraw the gamekeepers as they could no longer justify them. Immediately, of course, the other predators came back on the scene and the population of hen harriers crashed. It is now down to two or three pairs on that moor; there were several times that number.
 I use that point to illustrate that such factors all work together. The real solution, and I apologise if I have been tempting providence, Mr. Forth, is that we have to persuade the people who carrying out such poisonings—I accept that it is going on—that there is a better way of resolving the fundamental issue, which is seen as a conflict, although I do not believe that it is. I would like to see much more of a rapprochement between those involved in managing such areas.
I happen to think that we need to examine the concept of relocation when numbers of raptors in certain areas get above a level that is sustainable alongside all the sporting activities. I shall now turn, I am sure with your gratitude, Mr. Forth, to the individual amendments in the group, but I just wanted to set the wider context of my thoughts and concerns.
Amendment No. 144 would require the proof of intent. I am concerned, as hon. Members often are, when we seek in the House of Commons to reverse the burden of proof. I know that we have said in other legislation, “You are guilty unless you can prove your innocence”, or in other words we have told people that unless they can prove that they have a good reason for having something we will assume that they are guilty. I believe that that is a fundamental breach of the traditional way that we deal with criminal law. As I say, this is not the first time that it has been mooted—it has happened before—but each time it is another step towards a wholly different approach to criminal law, which we have traditionally rejected in this country. However, that is clearly what clause 43 says when it specifies:
“A person is guilty of an offence if he has in his possession a pesticide”—
and so on.
Later on, some defences are laid down, but the onus will be clearly on the individual to prove that he had just cause to have this particular pesticide or else it will be deemed that he had it for a malign purpose or criminal activity. That is wrong, which is why there should be an attempt to prove intent in the clause. I have already explained why the clause is unlikely to produce the results that we want: a reduction in bird poisoning incidents. I am not convinced that the clause will have that result and with respect to civil liberties and the right way to address criminal law, the obligation to show intent should be included.
Amendment No. 63 would insert into subsection (3), where a person is able to prove
“that his possession of the pesticide was for the purposes of doing anything in accordance with”,
and so on, a need to reflect that it is easy to accumulate old pesticides and a few cans or tubes of something in the shed. I suspect that any Committee member who is a gardener is conscious of this. The amendment would  put into the clause a defence that something had been used in the past for one of the purposes of doing anything in accordance with the legislation. It is a perfectly reasonable position to adopt simply to say, “I’ve got some left over. I’ve had it a few years because I used to use it for X, Y or Z.”
Obviously, if it is illegal to possess that pesticide under other legislation, such as the Food and Environment Protection Act 1985 or other regulations, it is illegal to possess it: it is an offence. We know that, but I am concerned about the many other pesticides that are legal to possess in cases where, being reasonable, the person may have had a reason for having them in the past rather than the present.
Amendment No. 64 would introduce a six-month delay in the commencement in order to provide time for the knowledge and information to be satisfactorily put out and publicised, in what would be very remote areas, among the communities where such problems arise, to ensure that people know that the law has now changed, to whatever extent it ends up being changed. That will also give them time to dispose of whatever they have that they may wish to dispose of. Of course, we do not want people simply to put it in a dustbin or pour it in a ditch because of its nature. They will have to comply with environmental legislation when disposing of unwanted pesticides. It is perfectly reasonable—I understand from conversations that it would be acceptable to some of the outside bodies involved—to build in a delay before the offence comes into force in order to give people time to deal with whatever they may have in their possession.
The three amendments are designed simply to improve the quality of the legislation. Some of the other groups that I shall refer to in relation to this and other matters are also there purely to try to improve the quality of the legislation, as we are all required to do. That is the purpose of Committee scrutiny. However, at the same time, I have serious reservations about whether clauses 43 and 44 will achieve the results that the RSPB, the Minister, the vast majority of the sporting community and I want.
None of us wants people to poison birds of prey, particularly those that are rare. It is even dafter to poison birds of prey such as the red kite, which is the subject of a massive release and breeding programme. We have recently successfully reintroduced it into this country and it is a delight to see. It is not a problem. It feeds off carrion. Poisoning it is clearly daft, but sadly some people see fit to do so. As I said when introducing my remarks, I wholly condemn them and they need to be prosecuted, but I am not convinced that this provision will achieve that. If we are going to include it, it needs some amendments.

Robert Goodwill: First, I will establish my Sheffield credentials. As a candidate in the 1998 South Yorkshire European by-election, I had much experience of the rural parts of South Yorkshire in particular—we could not find too many Conservative voters in the urban parts. Happily, 12 months later, I was elected to represent the entire region, including Sheffield, in the European Parliament. I am pleased  that the Minister has followed the precedent of Arthur Scargill, who relocated his headquarters to Sheffield, but that is another story.
I endorse the comments made by my hon. Friend the Member for South-East Cambridgeshire about his amendments. I am concerned that we may be unwittingly criminalising people who are acting responsibly. There is a fragile balance—certainly on the North Yorkshire moors—and were it not for the activities of moorland gamekeepers, that balance would quickly mean that the moors would revert to bracken and scrubland. All the degradation of the environment that we have heard about from my hon. Friend would take place. It is only through burning and the control of predators that we can maintain the red grouse population on the moors. That bird cannot be reared artificially. It is only by maintaining the environment so that that bird can thrive that there is an income for the North Yorkshire moors and other moorland areas that means that those rural communities can be sustainable.
The vast majority of gamekeepers behave responsibly and use products legally. The reasonable use of these pesticides should be allowed to continue. In North Yorkshire in particular, we have had some very mild winters. We have a large rat population and the use of poison to control those rats, which can eat eggs, is important. Of course, the number of ways of controlling foxes has been somewhat diminished in recent months.
Pesticide legislation is complex and the supply is already well controlled. As a farmer, I have a pesticide store. I am licensed in the use of pesticides and, like the vast majority of farmers and gamekeepers, we adhere to the legislation. It is already an offence under section 5 of the Wildlife and Countryside Act 1981 to set poison with the intention of killing a wild bird. Many of the problems, particularly when they occur in relation to red kites, are with raptors eating carrion that has been poisoned. The Bill would not have any effect on carrion that had been legally poisoned and then became the food of raptors.
As has been said, many farmers and gamekeepers store unused stocks of pesticides. The advice from the Department for Environment, Food and Rural Affairs is to use up stocks of pesticides for the use that they are intended and not to dispose of those chemicals. Therefore, it is likely that there will be a number of chemicals in stores throughout the country.
That can lead to problems because of product withdrawal. Products are often withdrawn not for reasons of safety but for economic reasons—the manager deciding that it is no longer economically viable to produce the products. Even more complex for the person on the ground is the problem of generic products. We may well find that a number of products available contain the same active ingredients. When one of those products is withdrawn, it is difficult for the person to realise that the one in his store is the one that is withdrawn. The fact that the product number on the packaging is obsolete means that he has a product that  cannot be used. The six-month moratorium to allow people to realise which products are available and which are not is a good idea, particularly as many such products have similarly sounding names.
I endorse the comments that my hon. Friend made about the amendments. It would make the clause much more practicable and workable. The vast majority of people in the countryside want to achieve the same aims as do the Government. Using the amendments would help people to see a reasonable side to the Government by making the proposals workable on the ground.

Angela Smith: I start by promising hon. Members that I will not make any references to Sheffield except warmly to welcome the glowing testimony to the city that has been given and to object to the comments made by the hon. Member for Sherwood, who claimed Robin Hood for Nottinghamshire. I state once again that Robin Hood was a Yorkshireman. He was born in the village of Loxley in my constituency. The hon. Member for South-East Cambridgeshire was absolutely right about Cambridge. I lived there for four years—in Romsey, Newnham and Cherry Hinton. It does indeed take 15 minutes to go from one street to another in such a beautiful city.
I support clause 43. It closes a loophole in the law. At this point, I should declare my membership of the Royal Society for the Protection of Birds, the Woodland Trust, the National Trust and the Ramblers Association. I support the clause because, clearly, the use of pesticides to poison wildlife is a danger not only to birds of prey but to people and, particularly, to children, who are much less aware than adults are of the dangers represented by poisoned baits. The pesticides also pose a danger to working dogs and pets. So the problem is relevant to us all, not only those who are interested in wildlife.
The pesticides can be absorbed through the skin.

Eric Forth: Order. I remind the hon. Lady that the debate is specifically about the amendments. She is more than welcome to express her support for the clause when we come to the debate on clause 43 stand part, but, at this stage, I advise her to move on to talk about the amendments and to bear in mind that there is a possibility of a subsequent debate on clause stand part.

Angela Smith: I apologise, Mr. Forth. I was intending to move on to the amendment.
The pesticides are a danger and can be absorbed through the skin. The amendment would, indeed, weaken the clause in that it would negate the prosecution of many of the people who use the poisons. Although such prosecution would not solve the problem entirely, it would be a significant step in the right direction. It would not eradicate the problem of poisoning, but it would reduce it.
The hon. Member for South-East Cambridgeshire referred to the fact that individual bits of behaviour are increasingly being made illegal by the Government. I find these individual bits of behaviour abhorrent. The  holding of poisons not needed for a regulated purpose is unacceptable behaviour that is highly dangerous and should be banned. The fact that some people have held such pesticides in the past and may have them in their garden sheds strengthens the need for the clause and reduces the need for the amendments. If people have them in their garden sheds, we must deal with that because garden sheds can be broken into. The poisons can be accessed in that manner and can be used for purposes that the clause is trying to prevent.
One hundred and six red kites were found illegally poisoned between 1989 and 2004. As far as the RSPB is concerned, that is only the tip of the iceberg and the true number is much higher. I hope that hon. Members will refuse to support the amendment, because those with a legitimate need to own such pesticides have a defence under subsection (3). We must move on the issues, and restrict the number of pesticides and poisons that can be used for such destructive purposes.

Madeleine Moon: I rise briefly to speak to the amendments, and declare my interest in that I, too, am a member of the RSPB, and the Wildfowl and Wetlands Trust, as well as my local wildfowl trust. I was concerned to hear the vision expressed by the hon. Member for South-East Cambridgeshire of inspectors trawling through the garden sheds of Great Britain looking for unwanted pesticides.
I hope that the Minister will tackle the issue of publicity in his response, and ensure that people are fully aware of the implications for the holding of pesticides that the amendment would have. We must not wrongfully prosecute people. I accept that that is a desirable, and I hope that the Government will take its responsibility to do so seriously. Members of the Committee will be aware that a number of organisations are working on the Bill, and like us, they are trawling through it line by line. I hope that the British Association for Shooting and Conservation, the Country Land and Business Association, the Countryside Alliance, the Game Conservancy Trust, the Moorland Association, the National Farmers Union and the National Gamekeepers Association will also ensure that all their members are aware that the Bill makes it illegal to hold certain pesticides without good reason. I am sorry if we are putting a burden on local government again, but it is putting provisions in place to help with the legal disposal of the pesticides. Sadly, I am sure that we are all guilty of hoarding all sorts of products in our garages and garden sheds that, for the sake of our families and the wider community, it would be better if we did not.

Peter Atkinson: Apologies for my late appearance in the debate, Mr. Forth, but as the Countryside Alliance was mentioned, and as I am listed as a consultant to that organisation in the Register of Members’ Interests, I thought that I would respond to the hon. Lady. The Countryside Alliance and the other organisations that were mentioned are utterly opposed to the poisoning of birds in any way. Any respectable gamekeeper knows perfectly well what the law is. We have had an interesting debate today about grouse  moors, and the finger of suspicion always seems to point to gamekeepers who work on grouse moors. However, if one looks at the RSPB figures for confirmed wildlife poisoning incidents during 2003, there is not one involving a hen harrier. The majority of birds that were the victims of poisoning were, sadly, red kites and buzzards. No gamekeeper worries about red kites or buzzards to any extent because those birds eat carrion and do not predate on living grouse.

Madeleine Moon: I was not suggesting that gamekeepers were responsible. What I was saying was that such organisations, along with those that have lobbied us, have a responsibility to the Government to ensure that people are fully aware of the implications of the legislation, so that people are not found with pesticides that they should not have once the legislation is enacted. I was not attempting to indicate in any way that there was a hidden agenda or that gamekeepers were party to mass poisoning of wildlife.

Peter Atkinson: I am sorry, but I did not mean to imply that. I had moved on and was saying that a lot of the general publicity about the poisoning of birds seems to cast suspicion on moorland gamekeepers. I was trying to refute that, as the evidence does not support it.
The job of moorland gamekeeper is a high-profile one—it is visible, as there are always visitors and walkers on the moors—and those who do it operate in a fairly public arena. The majority of birds that fall victim to poisoning are attracted by bait that is put out to catch a hen harrier. Sadly, there have been two recent cases in my constituency in the roughly same area, one of which involved a red kite. Those who engage in such activities do so for nefarious reasons. They are irresponsible people, not responsible gamekeepers.
I support the amendment that my hon. Friend the Member for South-East Cambridgeshire has tabled. We should change the burden of proof with great reluctance and only after great consideration. Curiously, the burden of proof has been reversed in much wildlife legislation in the past. There are circumstances in which we should reverse the burden of proof, but it should be manifestly obvious that a benefit would be derived from doing so. In common with my hon. Friends, I do not think that the clause will achieve such a benefit, as it is confused in its intent.
The clause confuses people who keep bits of redundant poison in garden sheds with people who deliberately poison birds of prey. Gardeners have all sorts of things in their sheds, as my hon. Friend the Member for South-East Cambridgeshire said, some of which the Bill will outlaw. Some of us do not necessarily know what ingredients the products that we own contain, but we should perhaps look carefully on some rusting tins to find out. That is not the problem, however. People do not burgle garden sheds to get poison in order to poison birds of prey. Individuals who, for various reasons, poison wild birds are perfectly capable of obtaining illegal poisons.
The vast majority of poisons on the list are already banned. Carbofuran and alphachloralose are the main examples, and they have been banned for some time. It is easy for someone who is prepared to poison birds of prey to keep a stock hidden where no one can find it. The legislation will not stop such appalling individuals. If we are to reverse the balance of proof, will we be certain of catching the bird poisoners with the clause? I doubt it.

Jim Knight: This has been a useful debate. I accept what the hon. Member for South-East Cambridgeshire said. He takes a close interest in such issues, and it is important to state that we share the same motivation, as do all members of the Committee.
The clause seeks to create a new offence of being in possession of a pesticide containing a prescribed substance that is harmful to wildlife. There is a genuine need to take such a step, because although it is already an offence under section 5(1) of the Wildlife and Countryside Act 1981 to use or set poisons to kill or injure wild birds, securing successful prosecutions by linking known poisoning cases to individuals has proved difficult. Meanwhile, wild birds, particularly raptors, continue to be illegally poisoned at a rate of 30 to 50 a year.
I shall give an example of the problem that we seek to resolve. My example is of a gamekeeper, although I do not seek to pass comment on gamekeepers as a whole, the vast majority of whom are highly responsible. A gamekeeper may lay poisoned bait with pesticide containing a prescribed ingredient in woodland near his pheasant pen. It may never be found, but it may be eaten by a buzzard. The buzzard is collected and found to have been killed by pesticide ingredient X. A search of the gamekeeper’s premises reveals a can of that pesticide, which he can provide no reason for having. A legitimate reason would perhaps be for the control of insects on fruit, but there are no fruit trees in the vicinity even though it is an approved pesticide and it is certainly not unlawful for him to possess it.
Although there is a link between the gamekeeper and the dead buzzard, and the gamekeeper has a motive for killing the buzzard to protect the valuable pheasants, the evidence remains circumstantial. The gamekeeper can argue that anyone could have bought the pesticide that caused the death of the buzzard. He does not have to provide a plausible reason why someone else might have done it or suggest another individual. With the new offence in clause 43, the gamekeeper will still be in the same position with regard to the offence of poisoning the buzzard, but the new offence of possessing a pesticide containing a listed ingredient without having a legitimate use for it—it is important to stress that—will be easier to prove. It will also be possible for the court to seize the pesticide concerned, thus preventing further abuse.

Peter Atkinson: The problem is, as the Minister says, that there will always be products that anyone can legally possess that could be used to poison wildlife. If  one product is prescribed under the clause, the person could get rid of it, but use something else such as slug pellets for which he could claim to have a perfectly legitimate use. He could simply replace one poison with another.

Jim Knight: I accept that to some extent we will be playing catch-up and the situation that the hon. Gentleman describes may occur. However it is incumbent on us to do what we can to frustrate this activity, which we all agree is reprehensible. An alternative would be to ban all pesticides unless the person has a legitimate use for them, but although clear, that would be disproportionate. We have to target things a little more carefully and ensure that everything we do is backed by proper evidence.
Amendment No. 144 introduces an additional element to the offence of possessing a pesticide containing a prescribed ingredient and requires that the person concerned must have intended to commit an offence under one of the listed wildlife protection Acts. It is important that there should be no doubt that possession of listed pesticides without legitimate use is an absolute offence. The offence must therefore remain one of strict liability, regardless of intent, if it is to work. This will make it easier for the general public, farmers, gamekeepers and others who are likely to be in possession of such substances to understand the law, and for the law to be enforced. It is also important that all species of wild animals and wild birds are protected from pesticide abuse. It is therefore inappropriate to limit the application of this offence to particular species.
Amendment No. 63 introduces a retrospective defence to the offence of being in possession of a prescribed pesticide without having a legitimate use for it. Clause 43 is aimed at protecting vulnerable wild animals and birds from pesticide abuse. It is not the Government’s intention to lay innocent members of the public open to prosecution. It is for this reason that the defence recognises the circumstances in which the pesticide ingredients listed on an order will be legitimately held in a person’s possession. However, once a person has no legitimate use for a prescribed pesticide, its retention cannot be justified and it should be safely disposed of.
Garden sheds have been mentioned. We should understand that only those pesticides containing active ingredients listed under the order will be covered by the clause. There will not be a witch hunt of amateur gardeners for what they might inadvertently have in their garden shed. If they have a legitimate use for the ingredient that becomes prescribed, even if the product has been withdrawn, it will still be legitimate for them to have it in their possession.
My hon. Friend the Member for Bridgend asked about publicity. The Secretary of State will have an obligation to publicise when making an order prescribing the pesticides to which the offence will apply. Clause 43(8) states:
“The Secretary of State must take such steps as are reasonably practicable to bring information about the effect of an order under subsection (1) to the attention of persons likely to be affected by the order.”
Those people who might have a pesticide for which there is no legitimate purpose will be given notice by the Secretary of State that they should dispose of it or they will be committing an offence. If amendment No. 63 were accepted, as long as someone claimed that they had a legitimate use for the substance once upon a time, they could claim the defence in perpetuity. The previous legitimate use would in practice be impossible to prove, and I argue that the amendment would render the offence unenforceable. Sufficient safeguards have been introduced to ensure that the innocent will not be open to vexatious prosecutions. The list of prescribed pesticides will be subject to the prior consultation that I set out, and the Secretary of State is required to draw the list of pesticides prescribed by order to the attention of those members of the public who are likely to be affected.

Peter Atkinson: This is a technical point. Let us suppose that someone keeps in their garden shed a chemical that is prescribed but has a use on potato crops. The person then decides not to grow potatoes for two or three years. Would keeping the chemical there be a legitimate use on the basis that they might grow a further crop of potatoes in future?

Jim Knight: I would have thought that if the person can demonstrate that it is likely that they will cultivate potatoes and will require the pesticide, that will be a legitimate defence. The court will have to judge every circumstance on the basis of what we are saying and, as ever in law, we are talking about what is reasonable. If someone could reasonably show that they had a history of growing potatoes on their allotment and they were likely to grow potatoes in future, it would be reasonable and legitimate to keep that pesticide.
Amendment No. 64 would have the undesired effect of giving those who use a pesticide to cause harm to wild animals and birds an additional six months to replace it with an alternative product that does not contain an ingredient listed in the order. Perhaps that is not the intent of the hon. Member for South-East Cambridgeshire. There will be plenty of time for those who do not have the intentions described to dispose of products for which they do not have a legitimate use. A process would have to be gone through to add ingredients or products to the list by order in this House. There would be adequate consultation and adequate publicity would be attached to it, so I do not consider it necessary to allow an extra six months for people to find an alternative product. On that basis, I invite the hon. Gentleman to withdraw the amendment.

James Paice: We all share the same objective. As my hon. Friend the Member for Hexham pointed out, when we look at the list of incidents in 2003, we see that there is no justification for them. Most of the species that were poisoned in those incidents pose no threat to any form of shooting interest, be it on lowland, grouse  moor or anywhere else, so whoever was responsible for the poisoning had no vestige of an excuse—not that I am suggesting that anyone could.
I do think, however, that the Minister may not quite have taken on board the import of what is proposed. I am sorry that he did not address the fact that we are reversing the burden of proof in the legislation. The message is, “You will be guilty unless you can prove that you have a good reason for keeping the pesticide.” His response to the intervention by my hon. Friend the Member for Hexham about someone who says, “I used it to grow potatoes and might do so again,” seemed to be completely at odds with his earlier rebuttal of my amendment No. 63, when he said that he could not accept it because it would be an open-ended excuse for someone who said that they used to use it. The two do not sit together.
The Minister needs to examine his stance. It is perfectly reasonable for someone to say that they have a product in the shed. I have used the phrase “garden shed”, which has been picked up and used repeatedly by other hon. Members, but I am talking about any facility, whether it is the garden shed, farm building or even the dog kennel, which is where some people keep pesticides out of harm’s way because the dog stops anyone intruding.
I understand the Minister’s point that it is difficult to prove intent, but wherever pesticides are held, it is perfectly reasonable for people to say that they have kept them to grow potatoes in the garden, or to grow a crop if they are farmers, but that they do not use them any more, although they might do so again. His response to my hon. Friend the Member for Hexham suggested that he agreed with me, so his reason for rejecting my amendment No. 63 is odd.
As for amendment No. 144, I have already referred to the burden of proof. I accept that intent is difficult to prove, but I want to draw from the Minister what the clause is trying to achieve. That is why, with all due respect, his more generalised remarks about the clause suggest that he has not fully taken on the board the point that my hon. Friend the Member for Hexham and I were trying to make, which is that if people have malign intent and want to continue to set poison for birds, they will find a poison to do it with, even given the list in the schedule. I do not know what will be included in the schedule, but as I said, there are several poisons that it is reasonable for most people who live in the country to have. There are, for example, poisons for use against moles and rats.
We have not even embarked on products for humans. I do not know how many paracetamol tablets it would take to kill a bird of prey. Perhaps we should not speculate about that, but I am sure that a certain dose would kill it. I am concerned that people who want to find a way round the legislation will do so, and that we will have legislated to no overall gain.
I am sorry that the Minister chose to use a hypothetical gamekeeper as his example, because although he readily accepted that most gamekeepers are good, worthy and sound citizens, the mere fact that he used a gamekeeper as an example simply serves to underline the belief that gamekeepers are the problem.

Jim Knight: I do not want to repeat myself, but although I know that not all gamekeepers use poison, I know that other gamekeepers do. I heard of a particularly horrific incident in the west country this weekend, which may well implicate people who raise pigeons. We all accept that there is a problem and that we must do something about it, but I do accept that gamekeepers are not the only ones who use poison.

James Paice: I am grateful for that. I, too, am aware of suspicions that people who raise pigeons are also involved.
I was astonished that the Minister read out that amendment No. 64 would simply provide people with another six months to find an alternative poison. That was a contemptuous response to an important point, which was the point made by the hon. Member for Bridgend about publicity; people must be given time to learn what is on the schedule and what is being banned, and to dispose of it. That is all that I am seeking. If six months is not right, I am happy to discuss what is, but simply to dismiss the amendment on the grounds that it is intended to buy time for people to find something else is outwith the spirit of the Committee’s debate so far, and I regret that very much. The purpose of the amendment is purely to provide the opportunity for people to learn what is happening.
There are many other issues in this section of the Bill that my hon. Friends and I wish to debate, so I shall not press the amendment to a vote, particularly as there are probably others of equal, if not more, importance. However, this has been an opportunity not just to discuss the amendment but to rehearse the purpose of the clause and my humble reservations and those of my hon. Friend the Member for Hexham as to whether the Government will achieve the objective that we all seek to achieve. In order to make progress, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Colin Breed: I have listened to all that has been said. When my hon. Friends and I first read the clause, we had certain reservations, which have all been teased out in one way or another. First, the fact that the clause is headed, “Possession of pesticides harmful to wildlife”, when what we really want to prosecute is the use of pesticides to harm wildlife. I recognise the difficulty in obtaining evidence of use. People would have to be roaming all over the place and it would be difficult to gather evidence. Thus, we come down to the next best thing—possession.
The cause of all the problems is that sufficient evidence cannot be obtained to prosecute people for use, so the prosecution must be for possession. In many respects, the clause is a sledgehammer to crack a nut. It is draconian and has spread outwards and caused great difficulties in respect of legitimate possession of material, ingredients or substances that could be used to poison wildlife if such were the intention. We then come to the difficulties of proving  intent. First, use cannot be proven; therefore, it comes down to possession. Now intention must be proven, and that involves many difficulties.
The Minister referred to the whole idea of catch-up. I suspect that a constant succession of statutory instruments will be introduced to add other substances to the list. Presumably, every time one is added, there will be another six-month period. There will be six months for this one, and a different six months running into yet another six months. There will be a succession of six-month periods starting one month after the other.
There will be vexatious allegations. Already a considerable number of vexatious allegations are made about police going around looking at all sorts of things on farms and estates—not in potting sheds or garden sheds but on estates. I regret that people will make such allegations and that police time will be wasted.
My colleagues and I did not table amendments on the clause, which deals with a very difficult area. We recognise that the Government have tried to get as close as they possibly could to a solution, but we must register our real reservations about the clause. There will be difficulties in addressing the problem, and it could spread into other areas. The clause could create unintended consequences.

Question put and agreed to.

Clause 43 ordered to stand part of the Bill.

Clause 44 - Enforcement powers in connection with pesticides

James Paice: I beg to move amendment No. 124, in clause 44, page 16, line 10, leave out subsections (1) to (3).

Eric Forth: With this it will be convenient to discuss the following amendments:
No. 65, in clause 44, page 16, line 10, after ‘inspector’, insert
‘who suspects with reasonable cause that an offence is being committed under section 43’.
No. 125, in clause 45, page 16, line 29, leave out ‘and 44’ and insert
‘44, [Enforcement powers in connection with pesticides: entry and search without a warrant], [Enforcement powers in connection with pesticides: entry and search by force without a warrant], and [Enforcement powers in connection with pesticides: entry and search with a warrant]’.
New clause 4—Enforcement powers in connection with pesticides: entry and search without a warrant—
‘(1)If a constable or an inspector reasonably suspects—
(a)that a relevant offence is being or has been committed on any premises, or
(b)that evidence of the commission of a relevant offence is to be found on any premises,
he may at any reasonable time enter the premises and search them for evidence of the commission of a relevant offence.
(2)Subsection (1) does not authorise entry into any part of premises which is used as a private dwelling.’.
New clause 5—Enforcement powers in connection with pesticides: entry and search by force without a warrant—
‘(1)If a constable or an inspector reasonably believes—
(a)that evidence of the commission of a relevant offence is to be found on any premises, or
(b)that evidence is likely to be removed, destroyed or lost before a warrant can be obtained and executed,
he may at any time enter the premises and search them for evidence of the commission of a relevant offence.
(2)Subsection (1) does not authorise entry into any part of premises which is used as a private dwelling.
(3)A constable or an inspector exercising powers under subsection (1) may (if necessary) use such force as is reasonable in the exercise of those powers.
(4)An inspector may not exercise the power of entry conferred by subsection (1) between the hours of 11 p.m. and 5 a.m. unless accompanied by a constable.’.
New clause 6—Enforcement powers in connection with pesticides: entry and search with a warrant—
‘(1)If, on an application by a constable or an inspector, a justice of the peace is satisfied—
(a)that there are reasonable grounds for believing that—
(i)a relevant offence is being or has been committed on any premises, or
(ii)evidence of the commission of a relevant offence is to be found on any premises, and
(b)that one or more of the conditions in subsection (2) is met, he may issue a warrant authorising a constable or an inspector to enter the premises and search them for evidence of the commission of a relevant offence.
(2)The conditions are—
(a)in the case of any part of premises which is used as a private dwelling, that the occupier of the premises has been informed of the decision to apply for the warrant;
(b)in the case of any part of premises which is not used as a private dwelling, that the occupier of the premises—
(i)has been informed of the decision to seek entry to the premises and the reasons for that decision,
(ii)has failed to allow entry to the premises on being requested to do so by a person mentioned in section [Enforcement powers in connection with pesticides: entry and search without a warrant] (1) or [Enforcement powers in connection with pesticides: entry and search by force without a warrant] (1), and
(iii)has been informed of the decision to apply for the warrant;
(c)in either case—
(i)that the premises are unoccupied, or the occupier is absent, and notice of intention to apply for the warrant has been left in a conspicuous place on the premises, or
(ii)an application for admission to the premises or the giving of notice of intention to apply for the warrant is inappropriate because—
(a)it would defeat the object of entering the premises, or
(b)entry is required as a matter of urgency.
(3)References in subsection (2) to the occupier of premises, in relation to any vehicle, vessel, aircraft or hovercraft, are to the person who appears to be in charge of the vehicle, vessel, aircraft or hovercraft, and “unoccupied” shall be construed accordingly.
(4)Sections 15 and 16 of the Police and Criminal Evidence Act 1984 (c. 60) shall have effect in relation to a warrant issued under this section to an inspector as they have effect in relation to a warrant so issued to a constable.
(5)A constable or an inspector exercising—
(a)powers under a warrant issued under this section, or
(b)powers under Schedule 1 in connection with the execution of such a warrant,
may (if necessary) use such force as is reasonable in the exercise of those powers.’.

James Paice: Clause 44—

It being One o’clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.
Adjourned till this day at Four o’clock.